Fourth Dept.: Sufficiency of DNA test questioned

DNA testing is at the center of a cold case being appealed by a Rochester man convicted of murdering an East Rochester woman in 1995.

David M. Kaplan, a Penfield attorney representing Howard S. Wright, argued Tuesday before the Appellate Division, Fourth Department, that the type of test used was not strong enough to implicate his client.

Monroe County Assistant District Attorney Geoffrey A. Kaeuper countered that it also did not exclude Wright and, coupled with circumstantial evidence, proved beyond a reasonable doubt that he killed 26-year-old Patricia Daggett.

According to published reports, Daggett’s body was found on a Rochester street in November 1995. Wright, 43, and Christopher A. Gifford, 38, were charged 11 years later with raping and killing her, after investigators uncovered new evidence in what had become a cold case. Following separate trials in 2007, they were each convicted of second-degree murder after DNA evidence tied them to the crime. Wright was acquitted of a rape charge, but Gifford was found guilty of first-degree rape.

Kaplan is not only challenging the strength of the evidence, which he argued was not enough to support a guilty verdict, he is also claiming prosecutorial misconduct and ineffective assistance of counsel.

The case was prosecuted at the trial level by Monroe County District Attorney Sandra Doorley, who was an assistant district attorney at the time. Wright was defended by J. Raymond Brown.

Kaplan told the appellate panel it was inappropriate for Doorley to explicitly tell the jury Wright’s DNA was all over the crime scene, inside Daggett and on evidence swabs. He said that was not true.

There was a question about the strength of the type of genetic-marker test used. The Y-STR provides an analysis of the Y chromosome, which is only found in men.

Justice Nancy E. Smith, presiding, asked if Doorley had not tempered her remarks by granting there was a variance in the test and saying Wright could not be excluded as a suspect.

Kaplan said it was not tempering to say Wright’s DNA was all over the crime scene.

Justice Gerald J. Whalen said the prosecutor had made a statement about the weakness of the type of test used.

Justice Eugene M. Fahey noted the test was limited to number of men in the database and could only exclude males and their family members. He asked if that type of testing in New York had ever been validated in a Frye hearing, which is held to determine if certain evidence is accepted by the scientific community.

Kaplan said he did not think it had been.

Justice Fahey said it was his understanding only California had, but turned back to the Wright case, noting Kaplan was not challenging the admissibility of the Y-STR test.

Kaplan then turned to one of his other arguments, saying the trial defense attorney’s counsel was ineffective in that he did not object to Doorley’s comments or get experts to challenge the DNA test.

Justice Fahey said the law is unclear and that it would be hard to hold the defense attorney ineffective on that basis.

Kaeuper said the defense was very well prepared and that he thought Brown did an excellent job.

Justice Edward D. Carni questioned the validity of Doorley’s statements about DNA being found, but Kaeuper said the Y-STR test is a kind of DNA test and that the statements were true. Kaeuper also mentioned the test was supported by circumstantial evidence.

Justice Carni said he could see the prosecutor making such remarks in an opening statement, but that he was troubled by her using them in her closing argument.

Also on the panel was Justice Joseph D. Valentino. A decision could come as early as Dec. 27, the next scheduled decision release date, or sometime early next year.

Outside of the courtroom, Kaplan said the prosecutor went overboard by calling the Y-STR test DNA and said it was not enough evidence to show Wright murdered Daggett. Kaeuper reiterated that the test also did not exclude Wright.

Wright was sentenced to 25 years to life in prison and is housed at the Green Haven Correctional Facility in Dutchess County.

Gifford, 38, was also convicted of second-degree murder in the 1996 killing of 24-year-old Lachelle Weaver. He sentenced to 50 years in state prison and is housed at the Great Meadow Correctional Facility in Washington County.